Pen drive, Memory cards are documentary Evidence-SC

The contents of a memory card or a pen-drive are documents and the same shall be furnished to an accused under the mandate of Section 207 of the Code of Criminal Procedure Code (CrPC), the Supreme Court held on Friday.

This Bench of Justices AM Khanwilkar and Dinesh Maheshwari laid down that all documents, including electronic records, that the prosecution intends to use against an accused must also be supplied to the accused. This judgment came in the case concerning Malayalam film actor Dileep, who is one of the accused in a sexual assault case.

Dileep had sought a copy of a memory card that contains video footage of the assault allegedly committed by his co-accused at his behest. The pertinent question of whether the memory card would be considered as a "material object" or "document" was posed before the Court in this case.

The Court pointed out that under Section 176 of the CrPC, the Investigating Officer(IO) is required to forward "all documents" to the Magistrate. While some liberty is given to the IO as regards copies of documents or statements, the Court highlights that the IO has no power to withhold any documents from the Magistrate.

Further, under Section 207 of the Code, the Magistrate furnishes copies of these statements and documents to the accused. The Magistrate has the discretion to withhold documents should he find them to be voluminous. This, the Court says, is the right of the accused.

"furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution."

In this backdrop, the Court further examined the question regarding the nature of the contents of the memory card and whether or not they would be treated as documents. In the instant case, the Kerala High Court had concluded that a memory card must be treated as a material object and not a document.

The Court, on examining the scope of the definitions laid down in the Code, and referring to precedents regarding objects that store data, said that electronic records are documentary evidence under Section 3 of the Code. The judgment explains:

"It may be useful to advert to the exposition of this Court holding that tape records of speeches and audio/video cassettes including compact disc were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and are held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the 1872 Act"

The Court further said that if the prosecution was to rely on the fact of recovery of a memory card, then it could be treated as a material object. However, if the contents of the memory card are sought to be relied upon by the prosecution, then the same would be documentary evidence.

This conclusion was arrived at after taking into consideration provisions of the CrPC and the definitions of "electronic record", "data", "communication device", and "information" as given in the Information Technology Act. The Court thus said,

"On a bare reading of the definition of “evidence”, it clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for the inspection of the Court. "

Having held this, the Court further stated that should the prosecution rely on the contents of the memory card, a cloned copy of the same ought to be furnished to the accused in this case in the interest of upholding the right to fair trial under Article 21 of the Constitution of India. It is said,

"It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India."

However, in the instant case, the Court allowed Dileep to be given access to the contents of the memory card instead of allowing his prayer in toto. This was done keeping in mind the issues concerning the identity and privacy of the victim in the case. The judgment notes,

"However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial."

The Bench also directed the trial court to conclude the trial in the Dileep case within six months.

80 Kashmir companies get Internet after signing bond

The informal bond titled ‘Undertaking for usage of Internet’ asks subscribers to promise to share all the contents and infrastructure of the Internet as and when required by the security The Jammu and Kashmir administration has restored the Internetconnections of more than 80 subscribers who have signed a bond agreeing to use the services strictly for business purposes.

The informal bond titled ‘Undertaking for usage of Internet’ asks subscribers to promise to share all the contents and infrastructure of the Internet as and when required by the security agencies.

The bond directs users not to upload encrypted files containing any sort of video or photographs. “For the allowed IP, there will be no social networking, proxies, VPNs and Wi-Fi and that all the USB ports will be disabled on the network,” reads the bond.

A senior police official told ET on condition of anonymity, “This is just an assurance we need so that there is no wrong use of the Internet. Connections of some call centers, corporate offices and tourism related entities whose work is completely dependent on the Internet have been restored as well.” The bond mentions that the companies will be held responsible for any kind of breach and misuse of the Internet.

In the wake of the abrogation of special status of J&K and downgrading of the state into two Union territories, the authorities blocked the Internet, landline and mobile communication services. While the landlines and post-paid connections were restored in October, the ban on the Internet and prepaid mobile phones continues.

Super 30 founder Anand Kumar fined Rs 50,000 by Gauhati High Court

The HC fined Anand Kumar for failing to appear in connection with a PIL filed by four students of IIT-Guwahati accusing him of cheating The Gauhati High Court on Tuesday fined Anand Kumar of Super-30 Rs 50,000 for failing to appear in connection with a public interest litigation filed by four students of Indian Institute of Technology-Guwahati (IIT-G) accusing him of ‘cheating’.

A bench comprising Chief Justice Ajai Lamba and Justice Achintya Malla Bujor Barua directed Kumar to be personally present before the court on November 28, the next date of hearing.

On November 19, the court had asked Kumar to be personally present on November 26. Super 30 is a Patna-based institute which prepares students from poor economic backgrounds for entrance test to the premier IITs.

 Also Watch | Super 30 | Hrithik Roshan hosts premiere, Anand Kumar attends

“The bench was unhappy that despite its earlier order, Kumar had not appeared in court. Hence it directed him to pay Rs 10,000 each to the five guardians and students, who were present in court as compensation,” said Amit Goyal, advocate for the petitioners. 

The present case dates to September 2018 when four students of IIT-G filed a petition alleging Kumar gave a false impression that he could help poor students’ clear the entice examination to IITs, JEE.

They said when students from different parts of the country landed in Patna to enrol in Super 30, they were instead admitted to a coaching institute called Ramanujan School of Mathematics by charging Rs 33,000 per student as tuition fees.

Based on the petition, the court had issued notices in September last year to Kumar and senior Indian Police Service (IPS) officer Abhayanand, who started Super 30 along with Kumar in 2002. The two parted ways in 2008.

While Kumar has not appeared in the court or replied to the notice, Abhayanand filed an affidavit in January this year, saying that he had no knowledge of how Super 30 has been functioning after 2008.

The petitioners alleged Kumar has not been running any Super 30 classes after 2008, but each year after IIT-JEE results are announced he appears before the media with some students of Ramanujan School of Mathematics claiming that they are Super 30 students who have cleared the exam.

It added that last year too, Kumar claimed that 26 students of Super 30 had cleared IIT-JEE, but he hadn’t released the names of those students.

The petition stated that through his false propaganda, Kumar was cheating IIT aspirants and their guardians and also common people of the country including those from the northeast.

Kumar’s work related to Super 30 is the basis of a hit Hindi movie of the same name, starring Hrithik Roshan, released this year.

Gujarat high court quashes RERA’s penalty order

The Gujarat high court has quashed an order of penalty imposed on a real estate firm by the Gujarat Real Estate Regulatory Authority (RERA) for not mentioning its registration details in advertisements of its scheme.

The order has come as a breather for builders, who have been penalized by the RERA for skipping a mention of authority’s web address and details of project registration either in their prospectus or in advertisements. The RERA has punished 462 builders for breach of section 11(2) of the Real Estate (Regulation and Development) Act for not mentioning the details in any of them.

The issue involved Narayan Realty Infrastructure from Surat, which has mentioned details about its project in its prospectus, but not in its advertisements. The RERA slapped a penalty of Rs 1.5 lakh for the breach. Later, an appellate authority reduced the penalty amount to Rs 75,000.

The firm challenged the penalty in the high court through advocate Bhargav Hasurkar, who pointed out that the legislation mentions that the details should be mentioned either in prospector or in advertisements.

After hearing the case, the high court said that the RERA tribunal opined that the breach on part of the firm was not of a serious nature.

“However, in the opinion of this court, there was no breach at all. Penalty was thus unnecessarily imposed,” the HC observed and remanded the issue back to the appellate authority.

Supreme Court refuses to stay NGT ban on RO filters, asks manufacturers to approach govt.

The Supreme Court has asked the RO Manufacturers Association to approach the government on the National Green Tribunal's order prohibiting the use of reverse osmosis (RO) purifiers where total dissolved solids (TDS) in water are below 500 mg per litre.

The SC said this while hearing a petition filed by Water Quality India Association, representing the RO manufacturers, challenging the NGT's order which had directed the government to regulate the use of purifiers and sensitise public about the ill effects of demineralised water.

A bench of justices RF Nariman and S Ravindra Bhat said the association can approach the concerned ministry within 10 days with relevant materials in this regard and the government will consider it before issuing a notification as per the NGT's direction.

During the hearing, the counsel representing the association referred to a recent BIS report on standards of water in various cities across the country and said that it points out presence of heavy metals in Delhi's groundwater.

WHAT IS THE CASE

The Water Quality India Association had on Thursday moved the Supreme Court against a ban imposed by the NGT on use of RO filters in Delhi as they "unnecessarily result in rejecting 80 per cent of potable water".

The NGT in its order on May 20 had directed the Ministry of Environment and Forests to frame rules for manufacturing and sale of RO filters, and banned use of RO in areas where the Total Dissolved Solids (TDS) in water was already low.

It had also directed that wherever RO is permitted, manufacturers should ensure that more than 60 per cent of water should be recovered. Current systems discard about 80 per cent of the water which is being treated, leading to huge wastage.

S C on Rafale deal

The 

Supreme Court

 on Thursday dismissed the review petitions against its verdict in the 

Rafale deal

 on grounds that they lacked merit, reiterating its clean chit to the Modi government in the fighter jet agreement with French firm Dassault Aviation.

The apex court also rejected the contention that there was need to register an FIR in connection with the Rs 58,000 crore deal.

The kin of former Chief Minister Farooq Abdullah challenging their alleged house arrest by the State, dismissed - J & K high Court

The Jammu and Kashmir High Court on Tuesday declined to entertain the pleas filed by the kin of former Chief Minister Farooq Abdullah challenging their alleged house arrest by the State.

Justice Ali Mohammad Magrey dismissed the pleas filed by Muzafar Ahmad Shah, Begum Khalida Shah and Dr. Mustaffa Kamal in this regard, opining that their plea involved disputed questions of fact in which case the High Court is not the appropriate forum to approach by way of a writ petition. The order reads,

"... a Writ Court is neither to hold an enquiry into the allegations made in a petition, nor take oral evidence. In writ proceedings, a fact is to be supported and proved by authentic documentary evidence. 

Whereas the petitioners had alleged that they were being unlawfully detained in their houses since September 5, 2019, the State countered the submission on the strength of a communication by the Additional Deputy Commissioner. The said communication stated that neither have the petitioners being placed under house arrest, nor has their liberty been curbed.

In response, the petitioners' counsel had also submitted certain paper clippings to show that the petitioners were in fact under house arrest. However, the Court declined to place reliance on the same, remarking that,

"Press cuttings cannot be relied upon as authentic documentary evidence. Further, a Writ Court cannot hold enquiry into disputed facts."

The Court proceeded to observe that,

"Once facts are disputed, the writ petition is rendered not maintainable. In such circumstances, the only option available to a Writ Court is to dismiss the writ petition, leaving the party concerned free to take recourse to appropriate remedy."

It, therefore, dismissed the petition as not maintainable before the High Court and unnecessary. However, the judge clarified that the parties were free to pursue other appropriate legal remedies available to them.

"In light of the above, this petition is dismissed, as being not maintainable and unnecessary, leaving the petitioner free to take appropriate remedy available to him under law before an appropriate forum."

Farooq Abdullah himself was recently placed under house arrest invoking the Public Safety Act (PSA), following the abrogation of Article 370 of the Constitution.